Abstract
At present the law governing ‘obscene’ material (one has to use some word to identify the subject matter of this paper, but I shall try to beg no questions) is covered by a disorderly and scattered body of law, ranging from the Vagrancy Act of 1824 through to the recent Protection of Children Act of 1978.2 Everybody agrees that it needs tidying up, if nothing else. The principal working controls are however limited to three areas.
This paper was written before the Home Office’s Report of the Committee on Obscenity and Film Censorship under the chairmanship of Bernard Williams had been either written or published; this report has now been published by H.M. Stationery Office, London, as Cmnd. 7772, 1979. As a member of this committee I was somewhat inhibited in what I could say on the subject at the Lancaster conference, but I have not modified the pages for publication except in matters of detail or to correct errors. I have added some references to the report, hereafter cited as C.O.F.C.
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C.O.F.C. Appendix 1 sets out the law. Since then, the Indecent Displays (Control) Act of 1981 has introduced restrictions on the manner in which materials may be displayed in shops, at cinema entrances, etc. Further proposals which, if enacted, would impose controls on the activity of sex shops and sex cinemas are contained in the Local Government (Miscellaneous Provisions) Bill and the privately sponsored Cinematograph Bill, which have been introduced in the 1981/82 parliamentary session. A very full account of the law up to 1979 is given by Geoffrey Robertson, Obscenity ( London: Weidenfeld and Nicolson, 1979 ).
R. v. Hicklin (1868) L.R. 3 QB 360.
R. v. Anderson [1971] 3 All E.R. 1152, R. v. Stanley [1965] 1 All E.R. 1035.
E.g., recently Empire of the Senses (Ai No Corrida) had difficulty with the Customs and Excise.
R. v. Hicklin (1868) L.R. 3 QB 360.
The form in the Theatres Act of 1968 misses the words in italics, and refers to “drama, opera, ballet, or any other art, or of literature or learning”.
As Professor Woozley and others have pointed out, it is not possible to say whether the publishers of Lady Chatterley’s Lover were acquitted because the jury felt that `obscenity’ had not been proved, or because of the defence of `public good’, or because of some combination of these two possible grounds.
For a detailed account see C.O. F. C., Appendix 2.
R. v. Greater London Council ex parte Blackburn [1976] 3 All E.R. 184.
R. v. Curl (1727) 2 Stra. 788.
The elaboration of the concepts of the criminal law is largely a modern phenomenon, being related to the development of institutions and procedures which generated more `law’.
I am indebted to my colleague, Mr R. J. Spjut, for drawing my attention to the historical origin of the Hicklin formula.
The Sixth Report of H.M. Commissioners on Criminal Law is reprinted in Volume 3 of British Parliamentary Papers: Legal Administration and Criminal Law (Dublin: Irish Academic Press).
Also in the reprint, Volume 4.
D.P.P. v. Whyte [1973] AC 849. The working of the test is discussed in C.O.F.C.,Ch. 2; as in most areas of English criminal law the courts in fact do not apply a single test or concept, but a loose range of concepts. This phenomenon of muzziness has not, so far as I know, been explicitly recognised as a leading feature of the system.
The reasons why I do not favour the existing `test’, or the `public good’ defence, are set out in the report of the Williams Committee.
I emphasise `not wholly’ — the `list’ technique runs into difficulties discussed in a slightly different context in C.O.F.C. 9.23–28, and these render it ultimately unworkable.
The recommendations of the Williams Committee follow this general approach; though this seemed likely when this paper was written, the matter was far from decided.
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Simpson, A.W.B. (1982). Obscenity and the Law. In: Stewart, M.A. (eds) Law, Morality and Rights. Synthese Library, vol 162. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-2049-6_12
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